§3.2.1 Contract terms relating to the definition of the main subject matter of the contract

The Court has stated that contract terms falling within the concept of the ‘main subject matter of the contract’, within the meaning of Article 4(2) of the UCTD, must be understood as being those that lay down the essential obligations of the contract and, as such, characterise it (154). By contrast, terms that are merely ancillary cannot fall within the concept of ‘main subject matter of the contract’ (155). In order to determine whether a term falls within the concept of the ‘main subject matter of the contract’ the nature, the general scheme and the stipulations of the contract and its legal and factual context have to be considered (156). The Court (157) has expressed this as follows in relation to foreign currency loans: ‘37 In the present case, a number of elements in the documents before the Court indicate that a term, […], incorporated into a loan agreement concluded in a foreign currency between a seller or supplier and a consumer without being individually negotiated, on terms by which the loan must be repaid in the same currency, is covered by the notion of “main subject matter of the contract” within the meaning of Article 4(2) of Directive 93/13. 38 […] the fact that a loan must be repaid in a certain currency relates, in principle, not to an ancillary repayment arrangement, but to the very nature of the debtor's obligation, thereby constituting an essential element of a loan agreement.’ In this regard, the Court (158) has stressed the difference between contract terms stipulating that the loan has to be repaid in the same foreign currency in which it was issued and contract terms under which a loan dominated in foreign currency had to be repaid in the national currency according to the selling rate of exchange applied by the bank (159). The Court considered (160) that a contractual term, incorporated into a loan agreement denominated in a foreign currency, according to which the loan must be repaid in the same foreign currency as that in which it was contracted, lays down an essential obligation characterising that contract. It thus relates to the ‘main subject matter of the contract’ within the meaning of Article 4(2). In that respect, it is irrelevant if the amount of the loan is made available to the consumer in local currency and not in the currency stipulated in the contract (161). By contrast, the Court considered a term defining the currency conversion mechanism to be an ancillary arrangement (162).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07